Massive Legal Problems Threaten Blogosphere

SOME of you may have heard of an outfit called Righthaven LLC, headed by Las Vegas attorney Steven Gibson. Righthaven has filed at least 100 copyright infringement lawsuits regarding rights it has obtained to stories originally published in the Las Vegas-Review Journal. You can read about this blizzard of litigation in a story by the Review Journal‘s home-town competitor, the Las Vegas Sun, here: Websites, bloggers make moves to avoid Righthaven lawsuits, and also here: Righthaven reaches settlements in 2 cases.

Other articles and blogs have suggested that the lawyer behind all of this may be planning to do the same thing for the other newspapers owned by the holding company that owns the Las Vegas-Review Journal. That’s Stephens Media LLC (it apparently has no connection to Stephens Media Group, an Oklahoma radio broadcasting company) and according to Wikipedia, the newspapers it owns (in addition to its biggest, the Las Vegas-Review Journal) are these — many of which are published weekly or monthly:

Northwest Arkansas: They also have a joint venture with something called WEHCO Media Inc, and together they publish these papers in Northwest Arkansas: Springdale Morning News, Rogers Morning News, Northwest Arkansas Times, and Benton County Daily Record.

[Update of 30 Nov 2010: They’re adding 8 more papers in Iowa.]Iowa: Stephens Media Iowa, whose parent company is Review-Journal publisher Stephens Media, has bought the Ames Tribune, the Boone News-Republican, the Dallas County News, the Nevada Journal, the Ames Advertiser, Ames About People & Advertiser, the Tri-County Times and the Algona Upper Des Moines.

Washington: The Daily World, The Vidette, The North Coast News, The South Beach Bulletin, and East County News.

We’ve checked our archives (which took a bit of time), and it seems that we’ve never even mentioned a story from any of those publications — nor shall we ever do so. But we’re now compelled to check that list every time we want to discuss a news story that may be of interest to our readers. It’s tedious, but necessary.

Meanwhile, we just found another news article in Wired: Second Newspaper Chain Joins Copyright Trolling Operation, which suggests that WEHCO, the outfit in that joint venture with Stephens Media, may be planning to engage in the same litigation activity. They say WEHCO owns 28 newspapers. WEHCO’s Wikipedia writeup informs us:

The company publishes 10 daily newspapers serving three states, as well as eight English-language nondaily newspapers and two Spanish-language publications. They include the Arkansas Democrat-Gazette, the Texarkana Gazette, and the Chattanooga Times Free Press. Among the smaller papers in Arkansas are the Hot Springs Sentinel-Record, the Camden News, the Magnolia Banner-News, and the Hope Star.

That’s not very informative. It says they publish 10 dailies and 8 other English-language newspapers. Okay, that’s 18, but we’re only given the names of 7 of them, and that story in Wired says they have 28. We need to know them all.

So we went to WEHCO’s own website. No, we won’t link to it — that’s too dangerous. And it’s a devilishly difficult site to navigate. As far as we can determine, they own these 16 newspapers, which still doesn’t tell us everything we need to know.

Texas-New Mexico Newspapers Partnership, including newspapers named in the Wikipedia article.

Addendum of 31 Dec 2011: Stephens Media is acquiring these newspapers from the Regional Media Group: Thirteen dailies and one weekly newspaper primarily in the Southern United States, including titles in Alabama, California, Florida, Louisiana, North Carolina and South Carolina.

The Gadsden Times of Gadsden, Alabama
The Tuscaloosa News of Tuscaloosa, Alabama
Petaluma Argus-Courier of Petaluma, California (weekly)
The Press Democrat of Santa Rosa, California
North Bay Business Journal in Santa Rosa, Calif
The Gainesville Sun of Gainesville, Florida
The Ledger of Lakeland, Florida
Sarasota Herald-Tribune of Sarasota, Florida
News Chief in Winter Haven, Fla
Star-Banner of Ocala, Florida
The Courier of Houma, Louisiana
The Daily Comet of Thibodaux, Louisiana
The Dispatch of Lexington, North Carolina
Times-News of Hendersonville, North Carolina
The Star-News of Wilmington, North Carolina
Spartanburg Herald-Journal of Spartanburg, South Carolina

So what should a prudent blogger do? First, we have no choice but to make certain we don’t quote from — or even link to — any of those newspapers. Then we need to figure out what we’ve done in the past.

We’re confident that we’re clean regarding the Stephens papers, but now we need to check for the WEHCO papers — at least those we know about. That’s more work we hadn’t planned on, but we’ll do it. Anything we might find in our archives that even remotely refers to them will be purged of all offending content, if possible, and if not then it’ll be taken offline.

But that’s just a short-range solution. Looking into the future, this behavior might spread to other chains of newspapers, which would imperil just about every blog out there — except for those that only post pictures of the blogger’s cat or his grandmother’s recipes. Any blog that discusses anything in any publication is a potential target for this kind of litigation. And the longer we’ve been around, the more likely it is that land mines are buried in our archives, waiting to be activated by the copyright lawyers.

If this behavior starts to spread to other media groups, we may have to play it safe and take almost everything offline except our own essays — those that don’t discuss the contents of any newspaper. That would drive Google crazy, and it would kill thousands links others have made to our posts. After that we could, time permitting, review our old news-oriented posts and severely edit them to remove all content quoted from newspapers. We could then re-publish a summary of the redacted posts.

Realistically — if we put in the time that would require — what we’d end up with would be one or two articles summarizing Florida’s struggle with creationism legislation back in 2008, the same for Louisiana, ditto for Texas, etc. We’d have that, plus our own essays. It would certainly thin out the archives. But then we’d be reasonably safe from the threat of litigation from outfits like Righthaven.

We know, we know … “fair use” is legal under the copyright laws. Yes, that’s right; and that’s all we do around here. But litigation is expensive and nobody wants to bother with it, so that’s the reality of the situation. The Righthaven people know this. That’s the essence of their business model. Whether you regard them as shameless opportunists or champions of private property is immaterial. They’re doing what they’re doing, and the whole blogosphere has to deal with it.

12 responses to “Massive Legal Problems Threaten Blogosphere”

It all depends on how far this thing spreads. If it’s just this group of newspapers, we can live with it. Bad luck for those who are getting sued, of course. The blogosphere will adapt by what will amount to a cyber quarantine of the papers involved.

But if a major group of papers gets involved, we’ll see some big changes, and far fewer blogs. Those that remain will behave differently. But if a blogger is limited to writing stuff like: “I heard that …, and here’s what I think about it …” then what’s the good in that?

I think all it would take is one blogger to fight back and that would take care of it. I know you are scrupulous about linking to the original article, so it’s not like you are giving credit.

Bloggers might not speak favorably about an article, but that’s public opinion.

I doubt any case would end up in the newspapers favor, but it’s just trying to get someone to fight back. Of course, if it’s more trouble to fight back, then we’ve just lost a freedom. Thanks for that.

There’s probably some civil rights group, somewhere, that will defend a group of bloggers. According to some of the news stories, a lot of the suits have been filed against mom & pop blogs that have no resources at all. Of course, some of them have been posting entire articles, which is wrong, but others are said to be doing no more than what we do here — some excerpts and a link to the source. The little guys are settling quickly, but someone is going to litigate this mess. Timing is everything.

I don’t get it, how is this in the interests of newspapers? Sure you might squeeze a few bucks out of some hapless bloggers, but how does chasing internet users away from your newspaper website help you to grow your newspaper business? Because that is what will happen: people will stop linking to the newspaper website, traffic will go down, and effectively the newspaper is throwing money away on a website that no one reads. It kills any potential advertising revenue from the website.

I don’t get it, how is this in the interests of newspapers? Sure you might squeeze a few bucks out of some hapless bloggers, but how does chasing internet users away from your newspaper website help you to grow your newspaper business?

I can understand it in a case where a commercial blog, with ads on it, completely copies entire articles from a newspaper. Then, clearly, the blog is profiting from work they didn’t do. I doubt that it costs the newspaper any lost revenue, but still it’s annoying, and illegal. Blogs that do such things get no sympathy from me. But my understanding is that Righthaven isn’t being very discriminating in their targets — they’re going after everyone who even quoted a portion of an article. I donno if that’s true, but a lot of articles say that’s what they’re doing.

A shakedown like this sounds like an organized crime operation.
It might well be. It will be interesting to see whether Lewis and Roca — a good firm for whom I have done work in the past (full disclosure — distant past, barely within the Holocene) can dent the operation.

But denting should be in order. Assuming this report to be accurate, I think it presents a clear case of a law firm acting like an organized crime operation. It would be interesting to see someone countersue under the Racketeer-Influenced and Corrupt Organizations Act. Under that act, a law firm and a publishing company could be found liable for trying to shake down poor bloggers, just by following the Millennium Copyright Act.

I suspect the copyright guys aren’t much up on RICO, and they think themselves immune, because, they will argue, they don’t have criminal intent. RICO does not have a scienter requirement, however (or didn’t last time I looked at the case law). The mere actions of the shakedown would make the case. No criminal intent required, just the actions like a criminal, hunting down non-profit bloggers and demanding payment. It’s like a protection racket.

It would also be interesting to see someone countersue arguing a “no blood no foul” rule. What possible harm do these newspapers experience if a blogger in Rupert, Idaho, gets them five more readers?

As insurance companies have long known, it is often cheaper to just settle a lawsuit rather than go to trial, no matter what the truth of the case is. I can understand the point that the original author of a work should have control of where and how their work is used. However, it is a longstanding practice and acceptable use that portions of a copyrighted work can be used for review/criticism purposes. It sounds like Righthaven is acquiring copyrights after a work has been published and after people have written about the work(s) in question. How do they have the right to sue about the use of a work before they owned the copyright? That sounds like you can sue previous owners of the car that just crashed into you. Also, where is the damage done to copyright holder? The work in question is still usually freely available at its original site and the blogger isn’t making any money off it. In what way is the copyright holder losing money or being damaged?

Barratry, in criminal and civil law, is the act or practice of bringing repeated legal actions solely to harass. Usually, the actions brought lack merit. This action has been declared a crime in some jurisdictions: for example, in the U.S. states of California, Pennsylvania, Virginia, and Washington, barratry is a misdemeanor;[1] in Texas, a felony.[2]

In England and Wales the offence was abolished in 1967. The term has also fallen into disuse in Australia.[3]

Barratry also refers to the act of soliciting legal business from potential clients based on a particular event not just solely to harass. For example, an attorney who stops at the scene of a car accident or follows an ambulance to an emergency room in hopes of finding and soliciting business from an injured and aggrieved person might be accused of barratry. The lawyer who practices this sort of barratry is called, pejoratively, an ambulance chaser.

Lots of info in the article you linked to, Curmudgeon.
For instance, in order for a website to qualify for ‘safe harbor’ and thus require a copyright complainant to first give the webmaster notice and time to take down the material before suing them — (amongst other things) that each website register their contact information with the United States Copyright office………..
Other requirements can be read by visiting sites mentioned in the article.

The barratry defense is being used by two defendants.

I know of many bloggers who do post entire articles, especially in local blogs and forums. I’m thinking once the Vegas story makes its rounds there will be a lot of flushing and more supervision of these.

For instance, in order for a website to qualify for ‘safe harbor’ and thus require a copyright complainant to first give the webmaster notice and time to take down the material before suing them — (amongst other things) that each website register their contact information with the United States Copyright office…

I took a glance at that. I’m no expert, but it seems to be a provision for sites that merely host an “offending” blog. I assume that WordPress.com, the outfit that hosts this blog and literally millions of others, has complied. But that does nothing for the individual blogger, who could be sued without warning. At least that’s my understanding.